What can I do if I am left out of a will?
It may come as a surprise, or it may be anticipated, that a will-maker would leave nothing to a spouse or children.
The law in British Columbia allows a disinherited party to challenge a will on the basis of fairness.
The legislation that provides the legal basis for a challenge has been in place since 1920. At that time, the Wills Variation Act was passed after pressure from women’s organisations. It was at a time when men held most of the property. It was considered to be one of the links in the Government’s chain of social welfare legislation. It was to prevent those left behind from becoming a charge on the state.
Today the protections for disinherited spouses and children are contained in the Wills Estates and Succession Act. Other relatives are not entitled to this protection.
There are two interests which are protected by the Act. One is to provide adequate, just and equitable provision for the spouses and children of will-makers. The other interest is to protect testamentary autonomy. This means that the will-maker’s wishes are to be respected, except if it can be shown that a spouse and children did not receive an “adequate, just and equitable” share of the family wealth.
The Act did not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right.
In a legal challenge to a will on the grounds that it does not make adequate provision for the proper maintenance and support of the will-makers spouse or children, the court may order a provision that it thinks adequate, just and equitable out of the will-maker’s estate.
Sometimes a will-maker will give clear reasons in the will why a spouse or child is getting little or nothing. This is taken into account by the court. In a challenge to the will, the accuracy of the statements in the will about a person can be disputed with evidence to the contrary.
The Act specifically allows the court to refuse to make an order in favour of a person whose character and conduct disentitles the person to receive relief.
The court has the ability to order lump sum payments, periodic payments, transfers of property and to create a trust in a person’s favour.
The court considers two types of obligations. The first can be described as legal obligations. These are obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. The second are moral obligations. These are society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. Legal obligations are given greater weight than moral obligations.
Despite the provisions of the Act, sometimes a will-maker can take additional steps to ensure that a spouse or child receives nothing. The Act deals with assets that are in the deceased’s estate. This means all of the property that belonged to the person at the time of death. If assets never form part of the estate, the will does not operate with respect to those assets.
If the will-maker put the family house in a joint tenancy with someone else, that property goes directly to the other person and does not become part of the estate. If the will-maker set out beneficiaries in RESP, RRIF or cash investment accounts, the money goes to the beneficiaries without passing into the estate. This strategy avoids probate fees for those assets. It can be part of the will-maker’s overall tax planning arrangements.
The court has the power to make provision out of the will-maker’s estate but not the power to grab assets which passed directly to other people at the time of death.
Persons with significant wealth can arrange to have so little in the estate at the time of death that court approval of the will, called probate, is not required. An estate of less than $30,000 does not need to be probated.
Where circumstances arise that leave a person out of a will, an investigation is necessary to determine the assets that make up the estate and to examine the will for specific language which might give reasons.